Ninth Circuit Considers Case of Oldest Man on Death Row in U.S.

We wrote about Viva Leroy Nash, the character shown below, a few weeks ago. Mainly, we took a hard look at his case because, at 93, he's the oldest man on death row in the United States.

We pointed out that, despite being sentenced way back in 1983 to die, Mr. Nash never will be executed for the brutal robbery-murder he committed inside a west Phoenix coin shop.

Nash has been on the Row at the Arizona Department of Corrections in Florence for more than a quarter-century. But no one in his or her right mind would suggest that, someday, the government will strap this "fossil" (as one of Nash's attorneys calls him) to a gurney and fill his body with lethal chemicals.

Yet, Nash's appellate case continues.

Up in San Francisco on Monday, a three-judge panel from the Ninth Circuit Court of Appeals (one step below the U.S. Supreme Court) heard from one of the Phoenix attorneys representing Nash, and an assistant Arizona Attorney General.

That lawyer, Paula Harms, told the panel that "the ability to communicate rationally with your attorney is absolutely crucial to the relationship. When a client's mental illness is of such severity that this rational communication cannot take place, the attorneys cannot do their job."

She claimed that Nash is so mentally incapacitated by now that he can't help her with his latest appeal even if he wanted to.

Harms explained that she needs Nash's help to prove her contention that Arthur Hazelton Jr., the murderer's trial attorney in 1983, was pathetic in his representation during the trial and before sentencing. She noted that Nash never has had a court hearing on the state or federal levels on the "ineffective assistance of counsel" issue.

Our reporting on the case showed that Harms' point on Hazelton's lack of diligence in the case is well-taken. However, Nash surely would have landed on death row for the robbery-murder (the victim was 23-year-old Greg West) at a west Phoenix coin shop even with the best barrister this side of the Pecos.

"He's not going to be any help to me at a hearing," Harms said of Nash, referring to her client's age, physical infirmities, and alleged serious mental illness.

Assistant attorney general Jeff Zick argued that "based on what I've seen so far, I believe that Mr. Nash...has the ability to rationally communicate at this point."

One of the judges asked Zick, "He is quite elderly, is that correct?"

"He is 93 years old," the prosecutor replied. "He's had some health issues that I'm aware of."

Harms said that, beyond his myriad medical issues, Nash has been diagnosed with a delusional disorder that long has rendered him incompetent to assist his counsel, much less to be executed.

Perhaps.

But on October 15, Nash himself wrote to New Times about his articulate attorney, who works at the Capital Habeas Unit of the federal Public Defender's Office.

"She is a highly intelligent lady," Nash wrote of Ms. Harms. "Doesn't trust outsiders which is a required professional trait. Her group has the official federal judicial authority to take over capital cases where judicial doubt is seen and proceed to handle those cases in federal or even international courts, seeking justice."